JUDGMENT

TULZAPURKAR, J. :— Brief reasons for the dismissal of these writ petitions are :

1. This is a second attempt on the part of Sunni Muslims of Varanasi substantially to have our main decision rendered in Writ Petition No. 4675 of 1978 on November 3, 1981 reviewed, the first attempt having failed as a result of the dismissal of Writ Petitions Nos. 9014-16 of 1983 on 23rd September, 1983; the second attempt in the same direction has also to fail.

2. Apart from challenging the main decision, the petitioners are aggrieved by our direction to shift the two graves from existing position to the south of the grave of Maulana Hakim Badruddin, a direction contained in our order dated 23rd September, 1983 in C. M. P. No. 4939 of 1983. Here also, it must be stated that it was after giving a full hearing on the point to the Sunni Muslims on whose behalf writ petitions Nos. 9014-16 of 1983 were filed that the direction of shifting of the graves was given and hence that direction also cannot be made a subject-matter of a review by means of the present writ petitions.

3. Even on merits no case has been made out for admitting these writ petitions. The main contentions of the petitioners as urged by their counsel have been that the direction of the shifting of the two graves in question amounts to desecration of the sacred graves and interference with the religious practice of Sunni Muslims of respecting their dead and as such it contravenes their fundamental rights guaranteed under Articles 25 and 26 of the Constitution; that though their rights under Articles 25 and 26 are exercisable subject to public order, the need of maintaining the public order does not warrant such drastic interference, namely, the shifting of the graves and the direction in that behalf amounts to disproportionate interference with their practice to respect their dead when less drastic interference with it would have sufficed and in this behalf (1952) 3 SCR 597 (V. G. Rows case) was relied upon.

2-3. At the outset we would like to observe that such a great concern about preserving their fundamental rights under Arts. 25 and 26 of the Constitution and the meticulous anxiety to have least interference with their religious practice of respecting their dead sounds ironical when the petitioners who constitute a majority sect of Sunni Muslims of Varanasi had done their best during the hearing of the main writ petition No. 4675 of 1978 to defeat and deny similar rights under Articles 25 and 26 of the Constitution to the Shia Muslims of Varanasi, who constitute a small minority pertaining to the performance of their religious ceremonies and functions on the plots in question and when, even after this Court decided the matter in favour of Shias, they have been violently interfering with their performance of religious ceremonies and functions by indulging in stone-throwing hurling of acid bulbs / bottles, damaging and destroying their property (these ugly incidents of violence that occurred during the two Moharram festivals celebrated in December, 1981 and October, 1982 have been referred to by us in our order dated 23rd September, 1983). Furthermore, all the aforesaid aspects now put forward by counsel for the petitioners were taken into consideration by this Court when the order dated 23rd September, 1983 was passed and there is no substance in any of these contentions.

4. In our order dated 23rd September. 1983 it has been pointed out that the fundamental rights conferred on all persons and every religious denomination under Articles 25 and 26 of the Constitution are not absolute but the exercise thereof must yield to maintenance of public order and that the suggestion mooted by the Court to shift the graves was in the larger interest of the society for the purpose of maintaining public order on every occasion of the performance of their religious ceremonies and functions by the members of both the sects herein. It has been further pointed out that the ecclesiastical edict o